Abstract
Marine life in the Bay of Bengal (BoB) region is under serious threat due to extreme ocean pollution and its impact. In Bangladesh, due to lack of environmental law in general and marine pollution law in particular, the seas and inland waterways are being rapidly polluted; the glory of BoB has already diminished and it is estimated that it will depreciate further in future from different sorts of marine pollution. In this context, our study has been conducted to examine national laws and regulations for the prevention of marine pollution in Bangladesh, and to establish their extent and effectiveness. Our inquiry has revealed that not all sorts of marine pollution are addressed by the existing laws of the country and effective measures are yet to be taken, although there are obligations to do so under constitutional and international law to ensure the well-being of marine life.
Introduction
A clean, sound and healthy environment – including marine environment – is the right of each human being and, in this context, of every citizen of Bangladesh, falling under the ambit of the right to life recognised by the higher court of Bangladesh. 1 Such an environment is also required to be protected for the benefit of present and future generations through the implementation of qualitative legislation and other measures. 2 However, in Bangladesh, due to lack of qualitative environment laws, especially those relating to marine pollution, the sea and inland water are being polluted rapidly; the beauty of BoB has been degraded and will depreciate further in future due to different sorts of marine pollution: sewage, oil spills and contamination, plastic pollution, chemical pollution, ocean acidification, eutrophication, sedimentation, thermal pollution, pollution from ship-breaking industries, agricultural run-off, solid waste, etc. We think if such marine pollution are not properly addressed, identified and defined in the statutory laws of the country along with effective preventive and deterrent measures, they may badly affect marine life, human bodies and marine eco-systems in the concerned areas. In order to keep human and marine life safe, prevention of marine pollution and prerequisites in an effective legal framework and their implementation are essential; in these contexts, we have conducted this study to supple gaps in current research:
Ahmed surveys all areas of the environment (including air, soil and water along with their pollution) and explains existing law and regulations regarding the environment as well as showing the judicial precedents and guidelines in relation to prevention of environment pollution. 3 Alam and Xiangmin focus on marine pollution and its sources, giving emphasis to ship-breaking industries in Chittagong and their contribution to marine pollution, along with briefly explaining national and international laws and regulations including those relating to marine pollution. 4 Minorov identifies marine pollution by oil as one of the main causes of dysfunction in marine communities, and the deaths of some marine representatives and sometimes of the whole community. 5 Adams examines ocean pollution in the European zone and its negative impact on human and marine species. 6 Clark argues that pollution problems have many different origins and take various forms. 7 Arif and Karim analyses the international and regional legal initiatives regarding marine pollution in the South Asian Coastal States including Bangladesh and finds that ‘the issue is not considered seriously yet’ and the laws are mostly outdated and ineffective. 8
In this context, we investigated the sources of marine pollution in Bangladesh, particularly in the BoB region, stating and defining different sorts of marine pollution and their impacts upon marine and human life; making explicit the provisions of existing laws and international obligations regarding marine pollution in Bangladesh; discovering what sort of marine pollution are not covered by existing laws; and drawing up propositions to tackle these.
Research methodology
The present study is in the nature of doctrinal, qualitative research; the researchers have emphasised the importance of a critical study of existing national and international laws and case laws for which the national and international laws, judicial precedents or ruling of marine pollution are used as primary sources of data whereas text books, journals articles, journal reports, newspapers, existing research on prevention of marine pollution and information taken from the internet are applied as secondary sources. In conducting this research, the researchers have reviewed some relevant public reports, records, government notifications and some statistical data published by both private and public organs.
The researchers have also surveyed press and media reports concerning marine pollution mainly from five daily newspapers in Bangladesh: The Daily Star, The Independent, The Financial Express, The Daily Asian Age and Prothom Alo. Data have been accumulated for this study from both primary as well as secondary sources to find out the drawbacks of laws regarding the prevention of marine pollution in Bangladesh. Further, the article explores the research gap pertaining to the topic.
Scope of the study
The study focuses on different sources and sorts of marine pollutions in Bangladesh, their impacts on marine and human life in the BoB Region. It also examines existing national and international laws and regulations concerning the prevention of marine pollution, namely: The Constitution of the People’s Republic of Bangladesh, 1972; The Bangladesh Environment Conservation Act, 1995; The National River Protection Commission Act, 2013; The Territorial Waters and Maritime Zones Act, 1974; The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989; The Declaration of the United Nations Conference on the Human Environment, 1972; and The Rio Declaration on Environment and Development, 1992.
Definition clause
In this section, we define several words used in the article with the aim of ensuring clarity:
Marine Pollution: The term ‘marine pollution’ is not clearly or exactly defined in any national law of Bangladesh. But The United Nation Convention on the Law of the Sea defined ‘marine pollution’ as ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities’.
9
Pollution: The term ‘pollution’ means the contamination or alteration of the physical, chemical or biological properties of air, water or soil, including change in their temperature, taste, odour, density, or any other characteristics, or such other activity which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air, water or soil or any component of the environment, destroys or causes injury or harm to public health or to domestic, commercial, industrial, agricultural, recreational or other useful activity, or which by such discharge destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms of life.
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Waste: ‘Wastes’ are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.
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Environment: The term ‘environment’ connotes the inter-relationship existing between water, air, soil and physical property and their relationship with human beings, other animals, plants and micro-organisms.
12
Environment Pollutant: The term ‘environment pollutant’ indicates any solid, liquid or gaseous substance which causes harmful effects to the environment and also includes heat, sound and radiation.
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Hazardous Substance: The term ‘hazardous substance’ refers to a substance, the chemical or biochemical properties of which are such that its manufacture, storage, discharge or unregulated transportation can be harmful to the environment.
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Hazardous Waste: ‘Hazardous waste’ denotes any solid, liquid, gaseous, radioactive substance, the discharge, disposal and dumping of which may cause harmful change to the environment.
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Conservation of Environment: The term ‘conservation of environment’ conveys improvement of the qualitative and quantitative characteristics of different components of the environment as well as prevention of degradation of those components.
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Director General: The term ‘Director General’ refers to the head of the Department of Environment established under The Bangladesh Environment Conservation Act, 1995, for carrying out the purposes of the Act.
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Marine pollution and its impact: Bangladesh case
This section focuses on different sources of marine pollution and their impacts in Bangladesh. Basically, Bangladesh is a country in South Asia, located at the head of the Bay of Bengal (BoB); the width of continental shelf of the coast of Bangladesh varies considerably from less than 100 km of the south coast between the Hiron Point Sundarban and Swatch-of-no-Ground 18 and more than 250 km of the coast of Cox’s Bazar. 19 Sea is one of the gigantic vaults of submerged natural resources. Coastal countries like Bangladesh have a chance to develop their GDP by means of easy export and import of goods. History testifies to many civilisations being built beside rivers and oceans, indicating their significance. But overuse and abuse of our oceans are gradually creating marine pollution, which could eventually destroy the marine eco-system and resources. Therefore, feasible measures must be taken, by identifying the origins of marine pollution in the country, to tackle contamination. The marine environment of Bangladesh is directly and indirectly polluted by many agents 20 :
Ship-breaking industries
For many decades, the ship-breaking industry has been developed along the coastal area of the BoB, particularly beside the Sitakundathana, stretching from Fouzderhad to Barabkunda, 21 which is directly responsible for contaminating the ocean as poisonous chemicals and toxic substances like ammonia, burned oil spillage, floatable grease balls, metal rust (iron), etc. result from ship-breaking and fall into the ocean. 22 According to the survey report of the Institute of Marine Science of Chittagong University, usually the toxins contain 0.5 to 2.7 ppm of mercury, 0.5 to 21.8 ppm of lead, 220 ppm of chromium, 0.3 to 2.9 ppm cadmium, 2.6 to 5.6 of iron, 5.2 to 23.2 ppm of calcium, 6.5 to 10.57 ppm of magnesium. 23 And the toxic substances grossly affect several marine species including the blue whale. 24 Besides, the diversity of marine fisheries, crustaceans, coelenterates, molluscs, birds and benthic organisms is at stake nowadays. 25
Maximum score of toxic substance coming out of ship breaking activities fall into the ocean (ppm). Source: Survey Report of the Institute of Marine Science of Chittagong University.
Chemicals pollution
According to Gupta and Roy, ‘Chemical pollution is caused by the discharge of chemicals into the atmosphere through steam and wastewater’. In Bangladesh, generally, industries are built beside river banks and near the ocean due to easy transportation, use of water and ‘discharging toxic chemicals into the water that pollutes water’ 26 and these processes directly affect marine life. 27 In addition, the dumping of toxic liquid raises the temperature of the ocean known as thermal pollution. 28 As a result, marine animals and plants are badly affected as they cannot survive at higher temperatures and eventually perish. 29 According to Kristmannsdóttir and Armannsson, ‘the major pollutant chemicals in the liquid fraction are hydrogen sulfide (H2S), arsenic (As), boron (B), mercury (Hg) and other heavy metals such as lead (Pb), cadmium (Cd), iron (Fe), zinc (Zn) and manganese (Mn)’. 30 In addition, others include lithium (Li), ammonia (NH3) and aluminum (Al) 31 ; disposal of which into water is harmful for marine life. 32
Plastic pollution
Use of polythene along with other plastic products is the foremost cause of disquiet for environmentalists because of its awful contribution to marine pollution. 33 It occurs because of throwing plastic waste and other garbage into the water. 34 In a report of the Science Journal, Vol. 347, Issue 6223 published in 2010, it is revealed that Bangladesh attained 10th position in the top 20 plastic polluting countries in the world Million Metric Tons (MMT), which is as shown in Table 1. 35
Top 20 countries’ position in plastic pollution and marine debris.
Source: Jenna R. Jambeck, 2015.36
Note: MMT: Million Metric Tons.
As per the report 2018 of the United Nations Environment Programme (UNEP), it is found that in Bangladesh around 73,000 tonnes of plastic waste end up in the water and open spaces everyday through the Padma, Jamuna and Meghna Rivers. 37 Again, it is indeed, hugely alarming if it is revealed that plastic contributes about 8 per cent to the country’s waste, which is equivalent to 800,000 tonnes, 38 of which around 200,000 tonnes are driven into the ocean and rivers that damage our ecological balance. 39 In consequence, Bangladesh also ranked the same position-top 10th plastic polluting countries in the world in the Earth Day Network Report 2018. 40
On rainy days, plastic waste also causes a grim difficulty in transportation. 41 People cannot stroll freely as it blocks drains in the cities and floats drainage water on the road. 42 However, in order to discourage plastic usage, Bangladesh government became the first country in the world to ban polythene bags in 2002 and amended the ‘Bangladesh Environment Conservation Act 1995’ in 2010, setting restrictions on production, transportation, storage and use of polythene shopping bags. 43 But, it is a matter of regret that the use of polythene and other plastic products is still increasing terrifyingly day by day. Environmentalists presume that, by 2050, our oceans will contain more plastic than fish if we fail to take necessary measures. 44
Oil spills and contamination
Oil spills are among the most devastating elements of marine pollution. 45 Crude oil can last for years in the sea and grossly affects marine life as it contains extreme toxic. 46 It often suffocates marine animals to death. 47 If it enters the water, it is very cumbersome to clean up. 48 It floats on the surface and prevents sunlight from reaching marine plants. 49 Therefore, the process of photosynthesis of marine plants is badly affected. 50 Aside from skin and eye irritation, lung and liver problems in marine life can be caused. 51
It is apt to state here that around 3.5 million tons of crude and refined oil are imported by Bangladesh. 52 Of them, around 6,000 to 4,000 tons of oil contribute to pollution in the BoB annually. 53 In order to better understand, a diagram illustrating oil contamination at Chittagong coastal area is shown below (Figure 2). 54
Oil contamination at Chittagong Coast (mg/l). Source: Alam and Xiangmin, 2019.55
Sewage
In Bangladesh, sewage from nearly 37–38 million people living in 19 coastal districts directly or indirectly flows into the water system and eventually flows into the BoB. 56 Untreated sewage disposal, increasing coastal population, lack of proper sewage systems impinge on microbial contamination, food security, etc. 57 In addition, there are many reasons behind ocean pollution. And all of these badly affect both marine and human life by impairing the food chain, depleting oxygen content in water and disrupting the cycle of coral reefs. 58
Lastly, marine pollution may compromise the aesthetic value of the coastal tourist places like Cox’s Bazar and Saint Martin’s. If once such tourist places lose value among visitors, it may badly affect our economy. As Sultan stated in his research, the total contribution of Travel and Tourism to GDP was around BDT 627.9 billion in 2014 (4.1 per cent of GDP). 59 Sometimes, people want to be closed to the beauty of nature to relax. But if the beauty of nature itself is unable to mesmerise people, where will they go to relax? Therefore, it is must to protect our marine aesthetic value and resources from being polluted.
Constitutional obligation for the rights to a ‘sound environment’ or ‘protected environment’
In Bangladesh, marine life, as part of the environment is protected from pollution by the Constitution of the People’s Republic of Bangladesh, 1972 (hereinafter as the Constitution) under article 32. Though the Constitution, 1972 entitles right to life as one of fundamental rights (earlier mentioned) without including directly ‘right to sound environment’, later it has been broadly interpreted by several judicial pronouncements by the Supreme Court of Bangladesh and the rights to ‘a sound environment’ or a ‘protected environment’ have been included in the ambit of the right to life. It is apt to note here that the rights to sound environment or environmental rights were also not included in the Universal Declaration of Human Rights 1948 or in the constitutions of other countries at that time – ‘the rights to environmental protection are late arrival to the body of human rights law’ but last two decades the relation between human rights and environment got much attention special reference to the enjoyment of a safe, clean, healthy and sustainable environment; and the states have been recommended from different International and Regional Forums including the United Nations General Assembly – Human Rights Council to take necessary initiatives for the protection of environment relating to human rights as revealed in the report of Human Rights Council-2012-A/HRC/22/43. 60
In 1995, the founder chairman of BELA filed a writ petition concerning ‘right to sound-environment’ before High Court Division of the Supreme Court of Bangladesh to include it in the ambit of the right to life as stated under article 32 of the Constitution. And in the case of Dr Mahiuddin Faroque v Bangladesh and others, 61 the court declared ‘the right to sound environment’ as a part of fundamental right – the right to life under article 32 and, therefore, any affected citizen can seek it under articles 44 and 102 of the Constitution. In the same case, the court also declared that right to life also means right to a decent and healthy way of life in a hygienic condition; it also means a qualitative life from environmental hazards.
In the case of Rabia Bhuiyan, MP v Ministry of LGRD & Others, 62 the Appellate Division (AD) cited an Indian case Virendar Gaur v State of Haryana 63 where in paragraph 7 it is held that ‘Right to Life’ includes protection and preservation of the environment, ecological balance free from pollution of air and water and sanitation, without which life cannot be enjoyed. In the case of Rabia Bhuiyan, MP v Ministry of LGRD & Others, 64 it is also connoted that any contra acts or actions would cause environmental pollution; environmental, ecological, air water, pollution, etc. should be treated as amounting to violations of ‘right to life’. Therefore, a hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environmental protection. Accordingly, it is opined in the same case that there is a constitutional imperative of the State, Government and municipalities not only to ensure and safeguard a proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment. 65
Like the Constitution of Bangladesh, the Constitution of India, article 21 also refers these issues as they constitute a major part of right to life. 66 Besides, in the cases of Subash Kumar v The State of Bihar, 67 Vincent v Union of India, 68 Vikram Deo Singh v State of Bihar, 69 the Supreme Court of India also covers the right to enjoyment of pollution-free water as right to life. In this regard, the court further directed to improve public health through a hygienic environment. In addition, in the case of Munn v Illinoi, 70 the court defines the right to life: ‘By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed’.
Therefore, from the judicial pronouncements mentioned above, it can rightly be said that the prohibition of marine pollution and sound environment is a constitutional right relating to right to life as provided under the article 32 of the Constitution. So, as a constitutional right, it imposes liability on the government and the judiciary to protect marine life from danger; accordingly, in 2013 the government established the National River Protection Commission to keep the rivers, canals, water bodies and coastal areas of the country free from occupation and pollution; even the National Human Rights Commission is empowered to take action against perpetrators for any irregularities to prevent pollution from rivers as perusing the provisions of sections 12, 14, 19 of the National Human Rights Commission Act (NHRC) 2009.
It is pertinent to note that similar obligation is also imposed by the UNCLOS 71 or Basel Convention 72 which has been discussed in the latter section of the article. Moreover, the core statement can be shown by Figure 3 given below:
Marine pollution impact upon a sound environment of right to life.
Prevention of marine pollution: International laws and obligations
Several international environmental laws, conventions, treaties and protocols, etc. urge the prevention of marine pollution but effective application is absent in Bangladesh due to their nature as soft law. In this section, a query about concerned international laws and treaties about international obligations regarding prevention of marine pollutions has been investigated: Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989 73 ; Declaration of the United Nations Conference on the Human Environment, 1972; and the Rio Declaration on Environment and Development 1992, etc.
Among them, the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) (herein after as the Convention) connotes to take effective measures to prevent, reduce and control pollution of the marine environment. 74 Besides, it also binds international obligations upon member states to prevent, reduce and control pollution of the marine environment so as the hazardous and wastes directly or indirectly are not transferred from one place to another or one type of pollution into another. 75 Moreover, Article 207 of the Convention includes pollution from land-based sources where sub-article (1) mandates that States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures and sub-article (2) stipulates states shall take other measures as may be necessary to prevent, reduce and control such pollution.
The Basel Convention 76 also urges each party of the Convention to take necessary steps to prevent marine pollution. Accordingly, each party shall take the appropriate measures to 77 : (a) ensure the generation of hazardous wastes and other wastes being reduced into minimum state, taking into account social, technological and economic aspects; b) make sure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes; (c) secure that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimise the consequences thereof for human health and the environment; (d) corroborate that the transboundary movement of hazardous wastes and other wastes for being reduced to the minimum consistent with the environmentally sound and efficient management of such wastes, and for being conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement.
The Declaration of the United Nations Conference
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was an attempt by the United Nations to form a common outlook and create common principles to guide the peoples of the world in the preservation and enhancement of human environment including marine environment.
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Accordingly it provides: The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.
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States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
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States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
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The environment and natural resources of people under oppression, domination and occupation shall be protected.
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National laws and regulations: An examination
This section has examined existing domestic laws regarding the prevention of marine pollution and made an attempt to find the lacunae in them: The Bangladesh Environment Conservation Act, 1995; The National River Protection Commission Act, 2013; The Territorial Waters and Maritime Zones Act, 1974, etc.
The preamble of the Environment Conservation Act 89 clearly declares that the Act is for the conservation of the environment, improvement of the environment and control of environmental pollution but we think such Act is failing to fulfil its aims particularly in controlling marine pollution due to the flaws of the provisions of the Act in properly addressing marine pollution and failure of their implementation:
The Act deals with the prevention of vehicle emission and, for this purpose, empowers the Director General 90 or any person authorised by him to test any vehicle at any place or stop a vehicle in motion for testing, and instantly test it or detain it for a necessary period or may, if any vehicle violates such rules, seize it and other related documents, or give necessary direction for testing the vehicle. 91 But the most important thing is that this section or any other remaining sections of the Act have not covered prevention of vessel emission; it is also notable that there is no direct relevance of the vehicle emissions content with marine pollution but, here, the section indicates air pollution where vessel emission might be included. The section does not state specifically whether the word ‘vehicle’ includes vessels or not. In this regard, Oxford Leaner’s Dictionary provides that vehicle means ‘a thing that is used for transporting people or goods from one place to another, such as a car or truck’. But we think that the Act should include vessel emissions in this section 6 or subsequent new sections.
Section 6A of the Act provides that if, on the advice of the Director General or otherwise, the Government is satisfied that all kinds or any kind of polythene shopping bag, or any other article made of polyethylene or polypropylene, or any other article is injurious to the environment, the Government may, by notification in the official Gazette, issue a direction imposing an absolute ban on the manufacture, import, marketing, sale, demonstration for sale, stock, distribution, commercial carriage or commercial use. But, practically, the section is dead because, still now, polyethylene is being produced and used in the country on a large scale as there is no available alternative means to carry goods. 92
According to section 6C of the Act, the government may, in order to prevent damage to environment, subject to provisions of other laws, by making rules, control the production, processing, containing, stock, packaging, supply, transportation, import, export, disposal, dumping, etc. of hazardous waste. 93 But, in spite of having such restrictions on disposing of hazardous waste into water, various organisations, institutions, industries, mills and factories deposit hazardous waste into river water, canals, etc. and consequently, the waste goes to the ocean along rivers or canals.
Further, section 6D of the Act prohibits causing hazards to health and environment by ship breaking. The Act denotes that every ship owner and importer shall be responsible to ensure that hazardous waste arising out of ship breaking or cutting shall not pollute the environment or cause hazard to health. 94 In this regard, High Court Division (HCD) also directed to take necessary steps to close all ship breaking yards causing hazard to health and environment. In 2009, the HCD in a case namely BELA v Bangladesh 95 under paragraph 78 directed to immediately take steps to ensure closure of all ship breaking yards which are operating without necessary Environmental Clearance as required by law. The court also directed to issue ‘Environmental Clearance Certificate’ 96 only after taking all the facilities required for proper dismantling of the vessels, taking into consideration whether safety measures for the workers and the conservation of the environment and in particular disposal of hazardous waste generated by the dismantling process, are in place.
But, the directions have not yet been implemented properly. It is apt to state here that Bangladesh, like India, Pakistan, China, etc. did not sign the ‘Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009’. In consequence, the condition of ship-breaking yards is consequently working against a sound environment. 97
Again, the aim of the National River Protection Commission Act (NRPCA) 98 is to establish a Commission for preventing illegal occupation of rivers, pollution of water and environment, pollution of rivers caused by industrial factories, illegal constructions and various irregularities and ensuring multidimensional use of rivers for socio-economic development including restoration of the normal flow of rivers, proper maintenance thereof and making them navigable. 99 And the relevant functions of the Commission regarding the prevention of pollution are: to make recommendations to the Government to keep the water of rivers free from pollution 100 ; to make recommendations to the Government to ensure environmentally balanced and sustainable management of rivers 101 ; to make recommendations after monitoring the activities regarding conservation of rivers and regular inspection 102 ; to make recommendations after reviewing practical uses of existing different laws and policies related with the conservation of rivers and if necessary, make recommendations to amend the Act and policies 103 ; and to convey recommendations to the Government to keep the canals, water bodies and coastal areas of the country free from occupation and pollution. 104
Accordingly, in order to protect rivers and marine waters from pollution, the government in 2013 formed a Commission, whose duties are basically to make recommendations to the Government to keep the rivers, canals, water bodies and coastal areas of the country free from occupation and pollution, under ‘National River Protection Commission Act 2013’ so that the hazardous substances and wastes do not drive into BoB. 105
It is more important to state here that under the Act, the Commission can only investigate and make recommendations about any irregularities but cannot take any action, which is a major flaw in the Act. In 2013, though the government took a good initiative in enacting the law to prevent pollution from rivers, in practice, it is not effectively implemented. In this regard, Justice Moyeenul Islam Chowdhury and Justice Md Ashraful Kamal made an observation in a recent writ petition case that the National River Protection Commission and National Human Rights Commission seem to be dummy commissions as they cannot take action against perpetrators for any irregularities. 106 In consequence, most important rivers still now contain hazardous wastes which flow to the BoB and help to cause marine pollution. On this issue, as earlier stated, around 200,000 tonnes of the country’s waste of 800,000 flow into the ocean through rivers. 107 So, the Act has also failed to fulfil its aims. Therefore, the Supreme Court suggests that 450 rivers of the country will have to be protected in order to save human beings from damage and pollution. 108 Even, very recently in 2019, the Court declared all the rivers of the country as living entities with legal personalities and empowered the NRCC as a legal guardian for their protection. 109
Under the Territorial Waters and Maritime Zones Act (hereafter referred to as TWAMZA), 110 an important provision has been incorporated that the Government may, with a view to preventing and controlling marine pollution and preserving the quality and ecological balance in the marine environment in the high seas adjacent to the territorial waters, take such measures as it may deem appropriate for the purpose. 111 But the section of the Act seems to be vague as there is no clear-cut explanation about what measures will be taken; how the high sea will be kept free from pollution; and who will practically execute the measures, whether coast guard 112 or any other government employees, are not specially stipulated there. Moreover, no effective actions have yet been taken under TWAMZA. So, it can be said that its implementation is in the written word but not in reality.
Proposals
On the basis of the current study regarding marine pollution in Bangladesh, firstly, a separate statue is being proposed: Marine Pollution Prevention Act, as there is no specific separate law regarding prevention of marine pollution. We think if a separate law on the issue is promulgated, the matter of prevention of marine pollution will get priority which will also facilitate implementation under distinct authorities and separate establishments; making of separate laws on the issue is also essential as Bangladesh is a land of rivers connected with BoB with which peoples’ lives are directly related on many issues. The Act shall mandate and address: Definition of Marine Pollution; Identifying all sorts of marine pollution in Bangladesh; Principle of ‘Polluter Pays’
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; The design of vessels and pollution prevention equipment; Operation of vessels; Discharge of pollutants and harmful substances; Discharge of ballast water; Hull scraping and cleaning; Anti-fouling systems; Management of waste from ship repair facilities; Waste reception facilities in ports; Duty to report discharges; Records of discharges of hazardous wastes; Power of inspection and monitory; Liability for oil pollution damage; Liability for oil pollution damage from hazardous and noxious substances; Liability for pollution damage from bunkers; Limitation of liability for ocean pollution; Liability and punishment for disposing wastes at sea and river; Litter bin in coastal area; Liability and punishment for disposing wastes at sea and river for which they are polluted
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; Exemplary punishments; Provisions for Separate Law Enforcing Special Unit like Coast Guards for Prevention of the Marine Pollution and Implementation of the Act; Separate Marine Pollution Courts.
Secondly, exemplary punishments should be strictly implemented for violating laws; thirdly, planning and executing municipal/area-based waste management system should be considered; fourthly, taking initiatives in recycling of plastic goods by government and non-government sectors should get priority, and fifthly, inventing alternative use of plastics should be taken under consideration for prevention of ocean pollution. In addition, drainage systems should be effective to meet people’s needs. 115 Finally, the Buriganga, Shitalakhya, Turag, Balu Rivers and others have to be kept pollution free. 116 In this respect, in 2009, the Supreme Court recommended the government to restore the navigability and beauty of Buriganga, Shitalakhya, Turag and Balu Rivers within 5 years. But this has not yet happened. 117 So, a new but effective set of laws to protect marine and water from pollution should be passed as, now, it is a priority.
Overall, it can be said that if the above-mentioned proposals are taken under consideration then our marine and public health will be safe from pollution. And the maxim Salus Papuli Supremalex (let the safety of the people be the Supreme Law) 118 will be a reality.
Conclusion
Marine life in the BoB region is under serious threat and is at stake due to extreme ocean pollution and their impact (see ‘Marine pollution and its impact: Bangladesh case’ section of the article) where it is also revealed that all sorts of marine pollution are not covered by existing laws (see the ‘National laws and regulations: An examination’ section of the article) and effective measures are yet to be taken where there are obligations under constitutional and international laws particularly international environmental agreements to prevent marine pollutions and ensure sound marine life (see the ‘Prevention of marine pollution: International laws and obligations’ section of the article). Therefore, it can be rightly said that the Department of Environment of Bangladesh should firstly take seriously the sources of water pollution identified in the article (obviously they can also make an inquiry to trace sources); then should take the initiatives proposed in the article to prevent ocean pollution which creates a bar in case of ensuring and enjoying peoples’ rights to life. However, Environmental Conservation Act 1995 can be treated as umbrella legislation to avert marine pollution but it is not sufficient. For this reason, a new effective set of rules incorporating preventive measures set by international agreements for preventing marine pollution here is required as soon as possible whereas article 193 of the UNCLOS also mandates to take necessary measures to protect and preserve the marine environment. It is apt to state here that Bangladesh, as mentioned above, was the first country in the world to impose a ban on using polythene in 2002 where the Bangladesh Environment Conservation Act 1995 was so amended in 2010 inputting restriction on production, transportation, storage and use of polythene shopping bags but the country is not getting any benefit due to its poor implementation. 119 So, in order to protect the marine resources and marine life, it is high time to take necessary action by inaugurating a new law, namely ‘Marine Pollution Prevention Act’ following the proposals drawn in the article, directions of the Supreme Court, and the directions, guidelines and principles of international environmental agreements stated in the article.
Footnotes
Acknowledgements
The article named ‘Marine Pollution in Bangladesh-Framing Legal Responses: A Critical Study’ is wholly our own work unless otherwise referenced or acknowledged. In conducting the article, we reviewed various books, articles and newspapers and also used essential data and information accompanied with their sources as it is based in the nature of doctrinal and qualitative research. So, we acknowledge that there is no chance of plagiarism. We are very grateful to Mr Mark Bartholomew for proofreading of the article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article. This research article is the outcome of the joint effort of both us.
